It stands to reason that a manager who thinks enough of an applicant to hire her won’t turn around and fire her a few months later in a fit of discrimination. This is especially the case if it was obvious from the start that the applicant belonged to a protected class.
That’s why it makes sense to have the same people who made the hiring decision be part of the termination process if the need should arise. If you can show that the person or people who hired the applicant knew she belonged to a protected class from Day One, chances are the court will infer that there was no discrimination.
Recent case: Nada Hashem-Younes is an American of Lebanese decent. She also is a Muslim who speaks Arabic with a Lebanese accent. Hashem-Younes was hired by an Arabic language institute to teach Arabic, develop a curriculum, increase enrollment and get grants. The institute’s owner interviewed and hired Hashem-Younes.
A few months later, it became apparent that her curriculum development skills were subpar. No grants were in the works, and enrollment was falling. For all those reasons, the owner fired Hashem-Younes. She fired back with a race, religion and national origin lawsuit.
But the owner pointed out that he was aware of her race, national origin and religion when he hired her—he testified that she spoke with an obvious Lebanese accent and wore a Muslim head scarf. Therefore, he reasoned, he wouldn’t turn around a few months later and fire her because he discriminated against Lebanese or Muslims.
The court agreed, reasoning that the same-actor defense was a valid one. Unless Hashem-Younes could point to clear evidence of discrimination, there was nothing to cast doubt on the owner’s stated reasons. Hashem-Younes simply wasn’t delivering what she had been hired to deliver. The court dismissed the case. (Hashem-Younes v. Danou Enterprises, No. 06-CV-15469, ED MI, 2008)
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